Lakhan Lal vs State of C.G.

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 26-03-2004 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth ''the Act, 1985''), Durg in Special Case No. 05/2001. By the impugned judgment, accused/appellant Lakhan Lal has been convicted u/s 20(b) of the Act, 1985 and sentenced to undergo rigorous imprisonment for 1 year and to pay fine of Rs. 3,000/-, in default of payment of fine, to further undergo imprisonment for 6 months. Case of the prosecution, in brief, is as under:-

On 07-01-2001, Inspector Sunil Jonathan (PW-4) was posted at Police Chowki Kumhari, District Durg. He received secret information that the appellant had ganja in his possession and was engaged in selling the same illegally. He recorded the secret information vide Ex. P-1 and communicated it to his superior police officer and thereafter went to the spot along with police officers and independent witnesses. When he reached the house of the appellant, he (appellant) was present in his house. The appellant was informed about his right u/s 50 of the Act, 1985 vide Ex. P-2 and the consent of the appellant regarding search was recorded vide Ex. P-3. Thereafter, Inspector Sunil Jonathan (PW-4) searched the house of the appellant. The ganja was kept in the container and pockets which were seized from possession of the appellant. Ganja weighing 2.3 Kgs. kept in the container and 600 gms kept in the pockets was recovered from the house of the appellant. The weight man panchnama (Ex. P-9) was prepared and ganja was seized vide Ex. P-10. Samples of the sized ganja were also prepared separately. After the seizure, Investigating Officer Sunil Jonathan (PW-4) came back to the Police Station, Kumhari and recorded the First Information Report vide Ex. P-15. The appellant was arrested on the same day vide arrest memo (Ex. P-16). The complete details of the action taken was prepared u/s 57 of the Act, 1985 and copy of the same was sent to the superior Police Officer. Seized ganja and Samples of the same were kept in safe custody in Moharir Malkhana. Samples of the seized ganja were sent to Forensic Science Laboratory, Raipur for examination vide Ex. P-17. The report (Ex. P-19) was received therefrom in which the test of ganja was found positive.

After completion of the investigation, charge sheet was filed against the appellant in the Court of Special Judge, Durg under the Act, 1985, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Smt. Indira Tripathi, learned counsel for the appellant argued that there was no compliance of provision of Sections 42, 50 and 55 of the Act, 1985. She further argued that there is nothing available on record which shows that the container was containing ganja and samples taken from the container and pockets were sealed and specimen of sealed was prepared. The seizure from the appellant was not in accordance with law. Possibility of temper of the seal of the container and samples sent to the FSL cannot be ruled out. Therefore, the appellant is entitled to be acquitted of the charges framed against him.

On the contrary, Shri R.R. Sinha, learned Panel Lawyer for the State, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not warrant any interference by this Court.

I have heard the learned counsel for the parties at length and have also perused the record of Special Case No. 05/2001. The prosecution examined Topilal Kurre (PW-1), Babulal (PW-2), Head Constable Induram Sahu (PW-3) and Inspector Sunil Jonathan (PW-4). The appellant did not examine any witness in his defence.

Now, I shall examine whether provision of Section 42, of the Act, 1985 has been substantially complied with or not. Inspector Sunil Jonathan (PW-4) deposed that he received the secret information that the appellant had ganja in his possession. He communicated the information through the wireless message to the City Superintendent of Police and he recorded the information vide Ex. P-1. Induram Sahu (PW-3) deposed that on 07-01-2001, he was posted at police out post Kumhari as Head Constable. He brought the rojnamcha sanha No. 199. In rojnamcha sanha (Ex. P-11 A), he mentioned regarding secret information and its transmission to City Superintendent of Police. Inspector Sunil Jonathan (PW-4) deposed that he received secret information that when he was at the police chowki Kumhari and he recorded the information in rojnamcha sanha No. 199 (Ex. P-11 A). The secret information was sent to City Superintendent of Police. This fact was mentioned in rojnamcha sanha (Ex. P-11 A).

In Karnail Singh Vs. State of Haryana, , the Hon''ble Supreme Court held thus:

In conclusion, what is to be noticed is that Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham Vs. State of Kerala, hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith information the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer, But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.

Looking to the evidence of Inspector Sunil Jonathan (PW-4) and Induram Sahu (PW-3) and Ex. P-11 A and Ex. P-12 A, it appears that Inspector Sunil Jonathan (PW-4) received the secret information which recorded in rojnamcha sanha and he communicated the same to higher authorities which is corroborated by the document Ex. P-1 also. It is, therefore, clear that Inspector Sunil Jonathan (PW-4) complied the provision of Section 42(2) of the Act, 1985.

Now, I shall examine whether the provision of Section 50 of the Act, 1985 has been substantially complied with by the Investigating Officer or not. Section 51(i) of the Act, 1985, the officer, who is to search the accused, is required to inform the person about his right to be search by a Gazetted Officer or by a Magistrate. If the person gave consent to search before a Gazetted Officer or before a Magistrate, he was immediately taken to the said officer or Magistrate, otherwise, the search can be made by the concerned officer. The requirement of law has been held to be mandatory in nature and non compliance thereof vitiates the trial.

Inspector Sunil Jonathan (PW-4) deposed that he had given notice to the appellant for search. The appellant consented to search by him. Notice of search is Ex. P-3, which bears his and appellant''s signatures. Consent of the appellant was recorded in Ex. P-3 itself. On making search of the appellant after giving him notice before witnesses, Ganja was found in his possession, which was seized before witnesses.

In Nirmal Singh Pehlwan @ Nimma Vs. Inspector, Customs, Customs House, Punjab, the Hon''ble Supreme Court observed thus:

We have examined the facts of the case in the light of the arguments raised by the learned counsel for the parties and the case law cited. Ext. P.A. is the consent memo under which the appellant had opted to be searched in the presence of a Gazetted Officer. This memo is in the Gurmukhi script and has been read to us and we see that it cannot by any stretch of imagination be said to be informing the appellant of his right to be searched in the presence of a Gazetted Officer or a Magistrate as he was only given the option to be searched before one of the other. In Vijaisingh''s case (supra) the Constitution Bench crystallized the issue before it in para 1 as under:

The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer to "inform" the suspect of his right to be searched in the presence of a Gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted officer can be said to be due compliance with the mandate of the said section?.

It is therefore apparent that the precise question that was before the Constitution Bench was as to whether a consent memo could be said to be information conveyed to an accused as to his right u/s 50 of the Act. The Constitution Bench clearly stated that a consent memo could not be said to be such information as the provisions of Section 50 of the Act were mandatory and strict compliance was called for and any deviation therefrom would vitiate the prosecution. It was further held that it was not necessary that this information should be in a written form but the information had to be conveyed in some form or manner which would depend on the facts of the case. We have accordingly gone through the evidence of PW. 4 Prem Singh. He did not utter a single word as to whether he had informed the appellant of his right and he merely took his option as to whether he would like to be searched before a Gazetted Officer or a Magistrate as noted in Ex. P.A. In the light of the judgment in Vijaisingh''s case (supra) we find that there has been complete noncompliance with the provisions of Section 50 of the Act.

In Myla Venkateswarlu Vs. The State of Andhra Pradesh, the Hon''ble Supreme Court observed as follows:

Section 50 of the NDPS Act, so far as it is relevant, reads as under:

Conditions under which search of persons shall be conducted.--

(1) When any officer duly authorised u/s 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted officer or the Magistrate referred to in sub- section (1).

(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

In State of Punjab Vs. Baldev Singh, etc. etc., the Constitution Bench of this Court was considering the question whether compliance with Section 50 of the NDPS Act was mandatory and if it is so, what is the effect in case of breach thereof. After considering the relevant judgments on the point, the Constitution Bench drew the following conclusions: (SCC pp. 208-10, para 57)

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub- section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.

(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.

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(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial.

(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.

(7) That an illicit article seized from the person of an accused during the search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search.

The Constitution Bench in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, held that although State of Punjab Vs. Baldev Singh, etc. etc., did not decide in absolute terms

the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that the provisions of sub-section (1) of Section 50 makes it imperative for the empowered officer to Inform'' the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to ''inform'' the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act".

A careful perusal of Section 50 of the Act, 1985 indicates that when any authorised officer is about to search any person under the provisions of Sections 41, 42 of the Act, 1985, if such person requires, he has to take such person, without unnecessarily delay, to nearest gazetted officer of any of the departments mentioned in Section 42 or to nearest Magistrate.

In the instant case, Inspector Sunil Jonathan (PW-4) did not depose that the appellant was informed that he was entitled to be searched before a nearest gazetted officer or a nearest Magistrate. In Ex. P-3, it is mentioned that:

From bare perusal of Ex. P-3, it reveals that Inspector Sunil Jonathan (PW-4) informed the appellant only that he was entitled to be searched before a gazetted officer. He did not inform the appellant that he was entitled to be searched before a nearest Magistrate.

Now, I shall examine whether non-compliance of Section 50 of the Act, 1985 is fatal to the case of the prosecution?

In Jarnail Singh Vs. State of Punjab, the Hon''ble Supreme Court observed as follows:

12.A This Court in the case of Kalema Tumba Vs. State of Maharashtra and Another, discussed the provisions pertaining to ''personal search'' u/s 50 of the NDPS Act and held as follows:

if a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person.

Similarly, in the case of Megh Singh Vs. State of Punjab, this Court observed that:

A bare reading of section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises.

The scope and ambit of Section 50 was also examined by this Court in the case of State of Himachal Pradesh Vs. Pawan Kumar, In paragraphs 10 and 11, this Court observed as follows:

We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most, appropriate meaning of the word "person" appears to be -- "the body of a human being as presented to public view usually with its appropriate coverings and clothing". In a civilized society, appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one''s home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific-effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.

A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some, extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance, it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act"

In Madan Lal and Another Vs. State of Himachal Pradesh, and Megh Singh Vs. State of Punjab, the Hon''ble Supreme Court observed that a bare reading of Section 50 of the Act, 1985 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicle or articles. The position was settled beyond doubt by the Constitution Bench in State of Punjab Vs. Baldev Singh, etc. etc.,

In view of the above settled legal position, Section 50 of the Act, 1985 would not be applicable when search is made in a house or a vehicle or a container or a bag or premises. In the instant case, the search was made of the house of the appellant, therefore, Section 50 of the Act, 1985 is not applicable.

Learned counsel for the appellant argued that the evidence of Sunil Jonathan (PW-4) is not supported by independent witness. Therefore, conviction of the appellant cannot be based on the evidence of Sunil Jonathan (PW-4).

In Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, the Hon''ble Supreme Court observed thus:

In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.

It is not necessary to refer to various decisions on the point. We may, however, state that before more than half a century, in Aher Raja Khima Vs. The State of Saurashtra, , Venkatarama Ayyar, J. stated: (AIR p. 230, para 40)

40.... The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.

In Tahir Vs. State (Delhi), dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated: (SCC p. 341, para 6)

6.... Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.

In the instant case, Topilal Kurre (PW-1) and Babulal (PW-2) turned hostile and did not support the case of the prosecution, but they admitted their signatures on Ex. P-1 to Ex. P-10. Inspector Sunil Jonathan (PW-4) has substantially complied with the provision of Section 42 of the Act, 1985. Therefore, his evidence is taken for consideration without corroboration by the evidence of Panch Witnesses.

Now, I shall examine whether provisions of Sections 55 and 57 of the Act, 1985 have been complied with?

In Gurbax Singh Vs. State of Haryana, the Hon''ble Supreme Court observed thus:

9 It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, IO has admitted that seal which was affixed on the muddamal article was handed over to the witness PW 1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required u/s 55 of the NDPS Act. The prosecution has not led any evidence whether the chemical analyser received the sample with proper intact seals. It creates a doubt whether the same sample were sent to the chemical analyser. Further, it is apparent that the IO has not followed the procedure prescribed u/s 57 of the NDPS Act of making full report of all particulars of arrest and seizure to his immediate superior officer.

Inspector Sunil Jonathan (PW-4) deposed that Ganja like substance was recovered from the container and the packet. He further deposed that the seized Ganja was got weighed in presence of witnesses. Weighing Panchnama (Ex. P-9) was prepared, which bears his signatures. Weight of the Ganja was found to be 2.3 kilograms. The container contained 2.3 kilograms of Ganja and the packet contained 600 grams of Ganja. Out of which, 2 samples were prepared and sealed and remaining Ganja was seized from the appellant vide Ex. P-10 and sealed separately. In the seizure memo (Ex. P-10), it is mentioned that 2 sample packets each of 30 grams were prepared from the Ganja recovered from the container and 2 sample packets each of 25 grams were prepared from the Ganja recovered from the packet. Inspector Sunil Jonathan (PW-4) had arrested the appellant before witnesses vide Ex. P-16. He took the appellant along with the Ganja to Police Outpost Kumhari and registered First Information Report (Ex. P-15) and thereafter regular First Information Report was registered in Police Station Bhilai-3 vide EX. P-15A.

Inspector Sunil Jonathan (PW-4) deposed that he had handed over the property to Malkhana Moharrir for its safe custody.

Learned counsel for the appellant further submitted that possibility of sample analyzed by the FSL has been tampered which could not be ruled out in view of the fact that the impression of the seal was not found in FSL Report (Ex. P-19). She further submitted that the Constable who was entrusted with the sample packets was not examined and the delay in submitting the sample packets in the FSL was not explained.

On the other hand, learned Panel Lawyer for the State/respondent argued that sealing of the sample packets and the evidence led by the prosecution would not show any possibility of tampering of the sealed sample packets sent to the FSL.

Inspector Sunil Jonathan (PW-4) deposed that he had handed over the property to Malkhana Moharrir for its safe custody. Induram Sahu (PW-3) deposed that he was posted as Malkhana Moharrir at Police Chowki Kumhari. On 7-1-2001, Inspector Sunil Jonathan (PW-4) had handed over him the property whose entry was made at Serial No. 3 of the Malkhana Register by him. Malkhana Register is Ex. P-13 and its copy is Ex. P-13A. In cross-examination, in paragraph 4, he deposed that he submitted the property before the Court on 29-3-2001. In Ex. P-10, it is mentioned that - tCrhi= e; tCrh eky fd izkIr fd; kA

Looking to the evidence of Inspector Sunil Jonathan (PW-4), Head Constable Induram Sahu (PW-3) and Ex. P-10, it is clear that the seized article and samples were sealed by Inspector Sunil Jonathan (PW-4) and were handed over by him to Malkhana Moharrir for their safe custody.

Inspector Sunil Jonathan (PW-4) deposed that he had sent the samples of seized Ganja to FSL, Raipur for chemical examination vide Ex. P-17. The samples were received in FSL, Raipur on 11-1-2001. Ex. P-19 is the FSL Report and Ex. P-18 is the acknowledgement of Exhibit (Sample). In Ex. P-18, it is mentioned that 4 sealed articles A, B, C and D were received from Constable Manharanlal (No. 997) in sealed condition. In Ex. P-19, it is mentioned that articles A, B, C and D bears seal impression of Police Station Kumhari and the seals were intact.

It appears that the samples were taken on 7-1-2001 and the same were received in the FSL on 11-1-2001, i.e., after 4-5 days of the seizure.

In Jarnail Singh vs. State of Punjab (supra), the Hon''ble Supreme Court observed as follows:

14 The trial court as well as the High Court, on examination of the entire material, concluded that there was sufficient independent evidence produced by the prosecution regarding the completion of link evidence. Therefore, the delay in sending the sample parcel to the office of Chemical Examiner pales into insignificance. We are of the considered opinion that mere delay in sending the sample of the narcotic to the office of the Chemical Examiner would not be sufficient to conclude that the sample has been tampered with. There is sufficient evidence to indicate that the delay, if any, was wholly unintentional. This Court had occasion to deal with a similar issue, in the case of Balbir Kaur Vs. State of Punjab, The Court made the following observations:

As far as delay in sending the samples is concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh Vs. State of Punjab, wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the Court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case.

Therefore, mere delay of 4-5 days in sending the sample to the office of the chemical examiner would not be sufficient to conclude that the sample would have been tampered with. The seal was found intact and it was tallied with the specimen seal. Therefore, it cannot be assumed that there was tampering of the seal of the samples. It must be presumed that the samples, which were sealed at the time of recovery, must have been sent to the FSL properly.

Therefore, I find no infirmity in the impugned judgment of conviction and sentence passed by the learned Special Judge. For the foregoing reasons, the appeal is dismissed.